PARTLY CONCURRING AND PARTLY DISSENTING OPINION OF JUDGE PEJCHAL

I am in full agreement with my colleagues’ conclusion that the complaint alleging a violation of Article 6 of the Convention is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. I also fully agree with my colleagues’ decision to declare the complaint concerning Article 1 of Protocol No. 1 to the Convention admissible.

However, to my regret I have to dissent regarding the finding of no violation of Article 1 of Protocol No. 1. I voted that there had been a violation of Article 1 of Protocol No. 1 to the Convention.

I consider that the crux of the case is rather whether an acquittal should play a role in deciding whether to forfeit bail. In this context I observe that the applicant was finally acquitted, with a finding that he had not committed any criminal offence but had merely engaged in standard and transparent business activities, and further that his bail was forfeited. It is material that the decision to forfeit the applicant’s bail was taken after the acquittal had become final, that is, when the courts knew that the applicant had not committed any crime.

I note that under domestic law acquitted persons are entitled to compensation for the time spent in pre-trial detention: section 9(1) of Law no. 82/1998 on State liability for damage caused in the exercise of public authority by an irregularity in a decision or the conduct of proceedings provides that a person who has been in pre-trial detention has a right to compensation if he or she is acquitted. I note further that the applicant’s bail conditions were in lieu of his pre-trial detention. Moreover, under the domestic case-law a decision on bail is a decision concerning pre-trial detention (see, for example, the opinion of the Supreme Court no. 4/97 of 11 June 1998). On the facts of the present case it is inconsistent for the State, on the one hand, to grant the applicant a right to compensation for the time spent in pre-trial detention (although the applicant did not apparently apply for such compensation in the present case, he cannot be criticised for that as it is a right and not an obligation) and, on the other hand, to forfeit his bail security which, moreover, represents an amount far in excess of any compensation he could have claimed. The applicant should not, in principle, suffer any negative consequences of the criminal proceedings against him.

I further observe that there was some confusion as to the applicant’s address in Russia. On 8 July 2002 the lawyer sent certain documents to the Regional Court, including confirmation from the Russian authorities that the applicant’s official registered address in Russia was in Udomlya. However, the Regional Court continued to send the correspondence to a different address which resulted in the applicant not receiving it or receiving it too late.

On 1 November 2007 the Regional Court ruled, at the applicant’s request, that the security should be returned to the applicant as he had not been informed duly and in advance of the consequences of not complying with the conditions of bail. Moreover, none of the situations envisaged by Article 73a § 4 of the Code of Criminal Procedure for forfeiting the bail was applicable. Like the Regional Court, I have doubts whether the applicant was duly informed about the consequences of not complying with the conditions of bail. Despite the arguments of the High Court, the fact remains that the applicant was never formally informed as required by Article 73a § 6 of the Code of Criminal Procedure in force at the relevant time. The applicant’s statement, relied on by the High Court, says that he was aware of the possibility of forfeiture should the conditions of bail be breached. However, the content of the statement is not clear and it is not even certain whether the applicant understood what he was signing.

Lastly, it does not seem that the applicant’s failure to appear at the trial disrupted the proceedings in any way. The proceedings were conducted and completed in the absence of the applicant. His absence had no substantive influence on the outcome of the proceedings.

Having regard to the above considerations, I am of the opinion that the decision to forfeit the applicant’s bail, in the circumstances of the case, did not strike a “fair balance” between the demands of the general interest of the community and the requirements of the protection of the applicant’s fundamental rights. Accordingly, there has, in my view, been a violation of Article 1 of Protocol No. 1.

I consider that it would have been more logical for the majority to conclude that the complaint alleging a violation of Article 1 of Protocol No. 1 to the Convention was manifestly ill-founded and to reject it in accordance with Article 35 §§ 3 (a) and 4 of the Convention, rather than to declare the complaint admissible and rule, at the same time, that there had been no violation of Article 1 of Protocol No. 1. For my part, I believe there was a violation of Article 1 of Protocol No. 1 in this particular case.